Monthly Archives: February 2012

Motion for Summary Judgment Granted where Entity Controlled by Carl Icahn Breached Contract for Purchase and Sale of Distressed Debt: Goldman Sachs Lending Partners v High River Ltd. Partnership

By Adam Rafsky on February 28th, 2012 Posted in Bankruptcy, Breach of Contract, CPLR 3212, Industry: financial services, Justice Kapnick, Barbara R., Market Damages, Motion to Dismiss, New York, Summary Judgment

In a December 22, 2011 decision by Justice Kapnick, the Court granted the plaintiff’s (“GSLP”), an affiliate of Goldman, Sachs & Co., motion for summary judgment on its breach of contract claim and dismissed the defendant’s (“High River”), an entity owned and controlled by famous investor and businessman Carl Icahn, counterclaim for breach of contract…. Continue Reading

Mexican Bankruptcy Does Not Preclude Collection of Debt From Guarantors: Wilmington Trust, N.A. v. Vitro Automotriz, S.A. DE C.V. et al.

By Aaron Zerykier on February 28th, 2012 Posted in Bankruptcy, Choice of Law, Declaratory Judgment, Fraudulent Inducement, Guaranty, Industry: financial services, Justice Fried, Bernard J., New York, Request for Proposals, Summary Judgment

In a December 5, 2011 decision by Justice Fried the court granted plaintiff summary judgment declaring that the defendants cannot avoid their obligations as guarantors for debts owed by a company in bankruptcy. The bankrupt company defaulted on over $1.3 billion in payment obligations under certain notes. It then filed for bankruptcy, first under Mexican bankruptcy law… Continue Reading

Derivative Actions Dismissed for Failure to Comply with BCL § 626(c):Gillette v Sembler

By Hilary A. Frommer on February 28th, 2012 Posted in BCL 626, BCL 719, BCL 720, Derivative Actions, Industry: construction, Justice Emerson, Elizabeth, Motion to Dismiss, Shareholder Dispute, Suffolk

In a February 3, 2012 decision by Justice Emerson, the court dismissed the plaintiffs’ derivative causes of action against a corporate minority shareholder (alleging he transferred the corporation’s assets to himself and his wife for their personal benefit), for failure to comply with the demand requirement of BCL § 626(c), which mandates that a pleading… Continue Reading

Failure to Comply with Notice Provisions under Liability Policies Dispositive as to Survival of Third-Party Complaint: Carpio-Sanchez v Nakamura

By Matthew D. Donovan on February 21st, 2012 Posted in Condition Precedent, CPLR 3212, Industry: construction, Industry: insurance, Insurance Coverage, Justice Grays, Marguerite A., Queens, Summary Judgment

In a November 4, 2011, decision by Justice Grays, the court granted defendant/third-party plaintiff’s and third-party defendants’ respective motions for summary judgment dismissing the complaint and third-party complaint. Plaintiff-construction worker was injured on the job and sued defendant-homeowner to recover damages for his injuries. In turn, defendant-homeowner sued third-party defendant-insurers for defense and indemnification under their respective… Continue Reading

Attorney’s Appearance For Party in Default, Without Reserving Objections, Waives Objections to Faulty Service and Lack of Personal Jurisdiction: Frederic and Ade v Israel et al.

By Aaron Zerykier on February 21st, 2012 Posted in CPLR 3211, Default, Industry: construction, Justice Demarest, Carolyn E., Kings, Motion to Amend, Motion to Dismiss, Personal Jurisdiction

In a February 9, 2012 decision by Justice Demarest, the court granted a defendant’s motion to vacate an order finding it in default and granted plaintiffs’ cross motion to amend to modify the caption and assert additional claims against that same party – but denied that defendant’s motion to dismiss. The dispute arose from a construction… Continue Reading

Motion to Amend Answer Granted where Amendments Were Not Palpably Insufficient: Stuart’s LLC v Edelman

By Adam Rafsky on February 21st, 2012 Posted in Breach of Contract, Justice Warshawsky, Ira B., Motion to Amend, Nassau, Promissory Note

In a December 27, 2011 decision by Justice Warshawsky, the court granted the motion of defendants Worldwide Sourcing Group and Peter Lister to amend their Answer and Counterclaims to clarify certain counterclaims and to add cross-claims against certain defendants. The parties were engaged in the production, distribution, and sale of clothing, for which they entered… Continue Reading

Failure to Follow Traditional Mezzanine Financing Structure Precludes Plaintiffs from Recovering as Secured Parties: Lebedowicz v Meserole Factory LLC

By Matthew D. Donovan on February 14th, 2012 Posted in CPLR 3212, Declaratory Judgment, Industry: real estate, Justice Schmidt, David I., Kings, Limited Liability Companies, Summary Judgment

In a December 20, 2011, decision by Justice Schmidt, the court denied plaintiffs’ motion for summary judgment declaring that they are entitled to defendants’ membership interests in defendant-LLC as a security interest in connection with the purchase of real property. Defendant-LLC borrowed $3.5 million to purchase real property from the plaintiffs. Plaintiffs claimed that under the mezzanine… Continue Reading

Motion to Reargue Denied, Defendants Fail to Show Steps Taken Prior to Closing To Remedy Alleged Title Defect: Latipac Corp. v. Birchard and Haddock

By Aaron Zerykier on February 14th, 2012 Posted in Industry: real estate, Justice Oing, Jeffrey K., Motion to Reargue, New York, Summary Judgment, Title Defect

In a January 31, 2012 decision by Justice Oing, the court denied a motion to reargue the denial of defendants’ summary judgment motion. Plaintiff was supposed to purchase a $3 million property from defendants but failed to do so, arguing that two commercial units in the property had been illegally combined in contravention to the property’s… Continue Reading

Preliminary Injunction Granted, Contracts Voided based on Fraudulent Inducement and Public Policy: Ceppos v Szlendak

By Adam Rafsky on February 14th, 2012 Posted in Fraud In The Inducement, Industry: retail, Justice Bucaria, Stephen A., Motion to Dismiss, Nassau, Order to Show Cause, Preliminary Injunction, Public Policy, Release

In a January 12, 2012 decision by Justice Bucaria, the court granted the plaintiffs’ (“Ceppos’”) motion for a preliminary injunction restraining the defendants (“Szlednaks”) from enforcing three agreements; denied Ceppos’ motion for a preliminary injunction restraining the Szlendaks from using any of Ceppos’ confidential business information; and denied the Szlendak’s cross-motion to dismiss the complaint…. Continue Reading

Subcontractor Proceeds with Contract Claim Against Property Owner Despite Lack of Privity: Schwing Elec. Supply Corp. v Hunter Roberts Constr. Group LLC

By Hilary A. Frommer on February 14th, 2012 Posted in Breach of Contract, Contractor, Fraud, Industry: construction, Justice Whelan, Thomas, Lien Law 3, Motion to Dismiss, Privity, Sub-Contractor, Suffolk, Unjust Enrichment

In a December 28, 2011 decision by Justice Whelan, the court denied the defendant’s motion to dismiss the complaint and permitted a subcontractor to proceed with its breach of contract and unjust enrichment claims against the property owner, as well as the claim for fraudulent inducement against the individual defendants who the plaintiff claimed induced… Continue Reading

Court’s Granting Motion to Amend Renders Summary Judgment Motion Moot: Fusco and Fasulo v. Direct Access Management, LLC et al.

By Aaron Zerykier on February 7th, 2012 Posted in Industry: healthcare, Justice Driscoll, Timothy, Motion to Amend, Nassau, Summary Judgment

In a December 7, 2011 decision by Justice Driscoll, the court granted a motion to amend and denied a motion for summary judgment based on the original complaint finding that the amendment rendered the original complaint a nullity, and therefore moot. After the completion of a number of depositions, plaintiffs sought to amend their complaint to… Continue Reading

Motion for Stay and to Compel Arbitration Denied: Golden Touch Transp. of NY, Inc. v G.E.H.S. Transp., Inc.

By Adam Rafsky on February 7th, 2012 Posted in Arbitration, CPLR 2004, CPLR 7503, Franchise, Industry: Transportation, Justice Grays, Marguerite A., Motion For Stay, Non-compete, Queens

In a November 21, 2011 decision by Justice Grays, the court denied the defendants’ motion to stay the action and compel arbitration, and granted the defendants’ motion to extend the time to answer the complaint and reset the dates of discovery. Golden Touch, the operator of a ground transportation dispatch service, brought suit to enforce… Continue Reading

Jilted Boyfriend Can Proceed with Action Against Ex For Wrongful Transfer of Real Property: Menteiga v DePaola

By Hilary A. Frommer on February 7th, 2012 Posted in Breach of Fiduciary Duty, Constructive Trust, Conversion, Forgery, Fraud, Industry: real estate, Justice Pines, Emily, Motion to Dismiss, Slander, Subject Matter Jurisdiction, Suffolk, Tenancy In Common

In a November 30, 2011 decision by Justice Pines, the court granted in part and denied in part the defendants’ motion to dismiss the complaint which contained 12 separate causes of action premised on the plaintiff’s allegations that defendant DePaola transferred title to real property located in Pennsylvania to herself and the plaintiff as tenants… Continue Reading